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West v. Louisville Gas & Electric Co.

United States District Court, S.D. Indiana, New Albany Division

October 28, 2016

STEPHEN R. WEST, Plaintiff,
v.
LOUISVILLE GAS & ELECTRIC COMPANY, Defendant.

          ENTRY ON DEFENDANT'S MOTION TO DISMISS

          RICHARD L. YOUNG, CHIEF JUDGE

         Defendant, Louisville Gas & Electric Company, has an easement on a parcel of land owned by Plaintiff, Stephen R. West. Plaintiff maintains that Defendant has exceeded the scope of the easement by allowing a third party to install fiber optic cable on the property. He consequently filed this lawsuit, alleging four counts: (1) declaratory judgment to establish the scope of the easement, (2) trespass, (3) unjust enrichment, and (4) breach of contract. Defendant now moves to dismiss the Complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the plain language of the easement explicitly allows for such use. The court finds that there is a dispute of fact precluding dismissal, and therefore DENIES Defendant's motion.

         I. Background

         Plaintiff owns a parcel of real estate in Jeffersonville, Indiana, located at 51 Arctic Springs Road (the “Property”), which he acquired from his parents. (Filing No. 1-1, Complaint ¶¶ 4, 8). The Property includes a tower, approximately 248 feet in height, which is used by Defendant to run utility lines over the Ohio River. (Id. ¶ 5). Defendant operates the tower pursuant to an easement, the history of which is discussed below.

         In 1938, the Interstate Public Service Realty Company granted an easement to the Public Service Company of Indiana (“PSCI”) (the “1938 Easement”). (Id. ¶ 6; Filing No. 1-1, Exhibit A). As grantee, PSCI received

a right-of-way and perpetual easement to maintain, operate, renew, repair and remove a line or lines of poles and towers and all necessary equipment, wires, cables and appurtenances in connection therewith, for the transmission, distribution and delivery of electrical energy to the Grantee and other persons and concerns and to the public in general for light, heat, power, telephone and/or other purposes.

(Exhibit A).

         In the 1970s, Plaintiff's parents, Billy and Barbara West, acquired the Property. (Complaint ¶ 8). Subsequently, on July 8, 1976, PSCI assigned its rights in the 1938 Easement to the Ohio Valley Transmission Corporation (“OVTC”), a subsidiary of Defendant. (Id. ¶¶ 2, 9; Filing No. 1-1, Exhibit B). In August 1976, the Wests entered into a Supplemental Deed of Easement with OVTC regarding the 1938 Easement (the “First Supplemental Agreement”). (Complaint ¶ 10; Filing No. 1-1, Exhibit C). In the recitals, the First Supplemental Agreement discusses the 1938 Easement and the assignment, and then explains that OVTC “desires to replace the existing transmission lines and upgrade its facilities and wishes to update said easements so as to specifically define the rights of the parties.” (Exhibit C at 1). The agreement then provides,

Grantors hereby convey and re-convey to the Company all rights heretofore acquired by the Company or its predecessors, including the perpetual right, privilege and easement to enter upon, construct, reconstruct, replace, upgrade, maintain, operate, and/or remove, one or more lines for the transmission of electrical energy, together with any and all towers, poles, guys, stubs, anchors, foundations, and other necessary equipment, fixtures and appurtenances over, across, and within the existing 100 feet wide easement, a part of or all of which crosses the property of Grantors . . . .

(Id. at 2).

         In the late 1990s, Defendant approached Plaintiff's parents and asked them to enter into a second Supplemental Deed of Easement (the “Second Supplemental Agreement”). (Complaint ¶ 12; Filing No. 1-1, Exhibit D). The Second Supplemental Agreement provides,

[I]n addition to all rights granted to the Company in the Existing Easement, the Owner does hereby further grant and convey unto the Company the right and easement to construct, maintain, operate, repair, replace, upgrade and remove communication and telephone systems, including all equipment, facilities and lines appropriate in connection therewith, over, across, and under Owner's property . . . .

(Exhibit D at 1). Plaintiff's parents refused to accept the proposal, and the Second Supplemental Agreement was never executed. (Complaint ¶ 12; Exhibit D at 2-3).

         Plaintiff filed this action because unbeknownst to him or his parents, Defendant subsequently entered into an agreement with Time Warner Cable (“TWC”) to lease space on the tower in order to run fiber optic cable over the Property. (Complaint ¶ 13). TWC's fiber ...


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